Will the Supreme Court Say I Do?


Mar 25, 2013 | By ThinkProgress War Room

Supreme Court  Taking Up Historic Marriage Equality Cases

Tomorrow, the Supreme Court will hear arguments in the first of two historic cases dealing with marriage equality. Here’s what you need to know about these two cases and how the High Court could come down.

Case #1 (Tuesday): Hollingsworth v. Perry

At issue: California’s Proposition 8, the same-sex marriage ban approved by California voters in 2008. Listen to oral arguments here.

Legal Questions:

  • Is it unconstitutional under the 14th Amendment’s Equal Protection Clause for California to prohibit marriage equality?
  • California’s governor and attorney general stopped defending the measure several years ago, so a group of cities and Prop. 8 proponents stepped in to defend the law in their place. The Supreme Court must decide if it was even proper for this group to have been allowed to do so in the first place.

Possible Outcomes:

  • Marriage equality for everyone, everywhere
  • Marriage equality in some places now, everywhere else later. One route proposed by the Obama administration would result in marriage equality right now in California and other states that have civil union laws that are essentially marriage in everything but name. Legally speaking, if California’s ban is deemed unconstitutional, bans in other states would then also be difficult to defend. As the president said recently, he can’t think of any reason why any state’s ban should be valid.
  • Marriage equality just in California. The Court could tailor a narrow opinion that invalidates Prop. 8, but doesn’t really advance jurisprudence in a way that is particularly useful anywhere else.
  • Marriage equality in California, probably. The Court could use the second question about legal standing to dodge making a decision on the merits, which would leave the district court decision invalidating Prop. 8 in place. There are some unresolved questions about how this particular approach would play out.
  • No marriage equality in California, at least for now. The Court could reverse the lower courts and leave Prop. 8 in place. The only way it could then be undone is by voters through yet another ballot measure or in a future Supreme Court case heard by a more progressive Court. A poll out last week found that 61 percent of California’s now support marriage equality, making this route likely to succeed if also costly, time-consuming, and limited only to California.

For more details on how the Court could strike down Prop. 8, check out ThinkProgress’ legal analysis HERE.

Case #2 (Wednesday): United States v. Windsor

At Issue: The Defense of Marriage Act (DOMA), the 1996 law that bars federal recognition of same-sex marriages.

Legal Questions:

  • Whether Section 3 of DOMA, the part of the law that bars the federal government from recognizing same-sex couples for purposes of taxation, federal benefits, and more than 1,000 other rights or responsibilities, violates the legal married same couples’ guarantees of equal protection under the Fifth Amendment.
  • As with the Prop. 8 case, there are technical legal questions about whether the Supreme Court is even allowed to hear the case. First, can the Court hear the case since the executive branch already agrees with lower courts that the law is unconstitutional? After the Department of Justice stopped defending the law, House Republicans took up the cause of defending discrimination and have spent millions of taxpayer dollars doing so. The Court must decide if House Republicans are allowed, legally speaking, to stand in for the executive branch.

Possible Outcomes:

  • Marriage equality for everyone. The Court could simply rule that DOMA is unconstitutional because everyone has a constitutional right to marry the partner of their choice.
  • Marriage equality in some places. The Court could strike down DOMA and allow legally married same-sex couples to receive the same federal benefits as straight couples, but not rule on whether there is a broader constitutional right to marriage equality. Depending on how strongly worded such a decision is, it could make it difficult to defend other anti-gay laws and state marriage bans. Another version of this outcome could be decided on the basis of the Tenth Amendment, but this would establish a highly unfortunate precedent that could be dangerous for the social safety net.
  • Muddled mess. If the Court decides that it lacks jurisdiction for either or both of the reasons mentioned above, nobody is quite sure what exactly will happen. It’s possible that DOMA could remain valid everywhere but New York and New England (the federal circuit courts where the challenges were initiated). Another theory says the Obama administration could refuse to enforce the law, but then that still leaves open the possibility that a future anti-gay President Rubio could revive the law.
  • No change. The Court could disagree with the various lower courts that invalidated DOMA and find it to be constitutional. In this case, the only ways to get rid of DOMA would be a future case before a less conservative Supreme Court or Congressional repeal of DOMA. Senators and members of the House have already introduced a bill, the Respect for Marriage Act, to accomplish the latter.

For more details on how the Court could dump DOMA, check out ThinkProgress’ legal analysis HERE.

Stay tuned: ThinkProgress reporters will be both inside and outside the Supreme Court tomorrow and we’ll be bringing you live updates.

Get Involved: Sign Our Brief Telling the Supreme Court to Dump DOMA

Our partners at the Center for American Progress signed onto a legal brief against DOMA. Will you support their brief by signing on, and say that you won’t stand for the unconstitutional discrimination against LGBT people?

Sign HERE to tell the Supreme Court that DOMA must go.

Evening Brief: Important Stories That You Might’ve Missed


This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe.

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